26.12 - 3. Common Interest Doctrine

JurisdictionNew York

3. Common Interest Doctrine

The “Common Interest Doctrine” (CID) permits different parties to share confidential information without waiving the privilege “if the parties have a common legal interest, such as where they are co-defendants or are involved in or anticipate joint litigation.”3748 Courts generally look at two key considerations in determining whether the CID applies. First, the “nature of the legal interest must be identical, not similar,” and second, it must “be legal, not solely commercial.”3749 The CID can apply to privileged information shared during litigation or the due diligence phase of a transaction.

While most courts recognize the CID in some fashion, each court may choose to take a broader or narrower view of certain elements. The majority of courts will only apply the CID where there is an “identical legal interest” (or “community of interest”) “with respect to the subject matter of the communication between an attorney and a client concerning legal advice.”3750 That said, an overlap between a commercial and legal interest will not necessarily negate the identical legal interest.3751 However, many courts will not apply the CID where the legal interest is merely tangential to the commercial interest.3752 A minority of courts have adopted a broader rule applying the CID even if the general relationship is more commercial than legal, and where the litigation is reasonably anticipated but has not yet commenced.3753

Courts also consider other factors. For example, what efforts are the parties taking to keep the information confidential?3754 Is the confidential information limited to specific individuals or is it widely available to people at both companies? What is the state of the negotiations? Some courts consider parties still negotiating at arm’s length as adversarial and, therefore, not in a position to form a common legal interest.3755 In addition, courts are not likely to apply the CID where the information is disbursed to a number of potential investors compared to a single party much further along in the process.3756

PRACTICE TIP: Courts have not identified a single test or element that triggers the CID. As such, any party attempting to avail itself of this exception should note these practices will only assist in demonstrating to a court that there is a common legal interest and that the parties are interested in protecting the privilege. Unlike other privileges, e.g., the attorney-client privilege, courts appear to be more...

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